71 Op. Att'y Gen. 63 (1982)
 
71 OAG 63 64 65 66 67 68 69 70 END

Wisconsin Attorney General Opinions

Opinion # OAG 17-82,

12 February 1982.

Open Meetings;
Reapportionment,

The December 2, 1981, meeting of the Senate
Special Committee on Reapportionment was
probably held in violation of Wisconsin's
Open Meetings of Governmental Bodies law.

FRED A. RISSER, President

WILLIAM A. BABLITCH,
Majority Leader State Senate

This is in response to both Senator
Bablitch's December 3, 1981, request
for advice, and the December 16, 1981,
request for a formal opinion by the
Senate Committee on Organization.

The question in both requests is whether the
December 2 meeting of all six members of the
Senate Special Committee on Reapportionment
comes within Wisconsin's Open Meetings of
Governmental Bodies law.

It is my opinion that, although the members
of the Committee contend they had no intent
to violate the law, and, although the
issues present very close questions
of law, a violation probably did occur.

The open meetings law creates a strong
presumption in favor of the

  "fullest and most complete information
   regarding the affairs of government
   as is compatible with the conduct
   of governmental business."

Section 19.81(4), Stats., directs
that this law shall be

  "liberally construed to achieve the
   purposes set forth"

and that the

  "rule that penal statutes must be
   strictly construed shall be limited to
   the enforcement of forfeitures and shall
   not otherwise apply to actions brought
   under this subchapter or to
   interpretations thereof."

71 OAG 63 64 65 66 67 68 69 70 END

In considering an interpretation of this
law, for the purposes of advice pursuant
to Section 19.98, Stats., or for a formal
opinion, a liberal construction to effectuate
the purposes of the law is required.

However, when considering the same set of
facts for the purpose of bringing an
enforcement action pursuant to Section 19.96,
Stats., a strict construction in favor of the
accused is mandated. Section 19.83, Stats.,
provides:

Every meeting of a governmental body
shall be preceded by public notice as
provided in Section 19.84, and shall
be held in open session.

At any meeting of a governmental body,
all discussion shall be held and all
action of any kind, formal or informal,
shall be initiated, deliberated upon and
acted upon only in open session except
as provided in Section 19.85.

1981 Senate Resolution 7[1] created the
Special Committee on Reapportionment.

The resolution is not very comprehensive
concerning the Committee's authority, power
or duties and the only words of limitation
are directed to the duration of existence
of the Committee.

The facts leading and pertaining to the
December 2 meeting are set forth in an
attachment to a joint communication to
me from Senators Bablitch and Chilsen,
and concurred in by all members present,
dated December 9, 1981.

I base this opinion solely on the facts
as stated in that communication.

71 OAG 63 64 65 66 67 68 69 70 END

Senator Bablitch is the Senate Majority
Leader and chairman of the Committee.

The Senate Minority Leader, Senator Chilsen,
is also a member of the Committee.

For some time, two other members of the
Committee were working on partisan
reapportionment plans, Senator Engeleiter
for the Republicans and Senator Berger
for the Democrats.

Senators Berger and Engeleiter were to
attempt to resolve differences in their
respective plans and arrive at a bipartisan
plan which would then be put in bill form
and submitted to the senate for its
consideration.

Senators Bablitch and Chilsen shared with
each other their concern that Senators Berger
and Engeleiter were not making progress and
that the reason for this was either political
or personal intransigence on the part of
both senators.

Senators Bablitch and Chilsen felt that
a meeting would be helpful in getting
Senators Berger and Engeleiter together
to formulate a bipartisan plan.

The December 2 meeting was
convened for that purpose.

A critical issue is whether there was a
meeting as defined in Section 19.82(2),
Stats., which provides:

  "Meeting" means the convening of members
   of a governmental body for the purpose
   of exercising the responsibilities,
   authority, power or duties delegated
   to or vested in the body.

   If one-half or more of the members of a
   governmental body are present, the
   meeting is rebuttably presumed to
   be for the purpose of exercising the
   responsibilities, authority, power or
   duties delegated to or vested in the
   body. The term does not include any
   social or chance gathering or
   conference which is not intended
   to avoid this Subchapter.

The submitted statement of facts states:

There was never any intention prior to
the gathering to attempt to debate any
matter of policy, to reach agreement on
differences, to make any decisions on
any bill or part thereof, to take any
votes, or to resolve substantive
differences.

During the course of the meeting, there
was in fact no attempt to debate any
matter of policy, to reach agreement or
differences, to make any decisions on
any bill or part thereof, to take any
votes, or to resolve substantive
differences.

Everything was entirely preliminary in
nature to the work of the Committee.

71 OAG 63 64 65 66 67 68 69 70 END

One point should be made about the
legislative process: individuals draft
bills, Committees do not.

Committees do not have "authority" to
draft bills; individuals do. The
"authority" of a Committee in this area
is to take bills that are drafted by an
individual, or individuals, and, by
affirmative majority vote of the
Committee, introduce them under
the name of the committee.

When individuals draft bills, they may
be members of the same committee but
they are nevertheless acting as
individuals.

(The putting together of substitute
amendments to an already introduced bill
is an entirely different matter.)

The argument that legislative committees
themselves do not have the power or authority
to draft legislation, and since no bill had
been introduced or referred to the Committee,
the Special Committee could not have met
for the purpose of exercising its
responsibilities, authority, power
or duties, is not persuasive.

I do not consider the fact that the Committee
was not considering or debating a formally
introduced bill as a factor which would
remove the meetings from the definition
of a meeting in Section 19.82(2), Stats.

The Legislature creates committees to perform
functions that the Legislature itself does
not wish to involve itself with as a body.

The legislative process is not limited solely
to debating and voting on bills, and includes
many activities directed to the final product
legislation.

Legislators act within their authority when
they adopt floor plans, conduct
investigations, hold caucuses, etc.

At least one Senate Rule and several Joint
Rules of the Legislature currently in effect
suggest that committees, and not solely
individual legislators, may have
legislation drafted and introduced.

Senate Rule 30 provides that the name of a
committee introducing a bill shall be
entered on the bill jacket.

Joint Rule 51 authorizes a committee
chairperson, on behalf of the committee,
to make use of the Legislative Reference
Bureau drafting services.

Joint Rule 83 provides that during any
scheduled committee work period,

"the chairperson of any special
committee may on behalf of that
special committee and within the
special committee's scope,"

deposit legislation for introduction.

Joint Rule 84 provides that unless otherwise
ordered, special committees shall continue
throughout the entire session and may,
pursuant to due notice. meet, conduct
studies, investigation and reviews, and
request technical assistance from the
legislative service agencies.

71 OAG 63 64 65 66 67 68 69 70 END

These rules seem to provide ample evidence
that the purpose of the December 2 meeting
falls within the responsibilities, authority,
power or duties of the special committee.

It has been suggested that my opinion to

Chairman of the Wisconsin Employment
Relations Commission Slavney,
68 Op. Att'y Gen. 171 (1979),

and

State ex rel. Lynch v. Conta,
71 Wis.2d 662,
239 N.W.2d 313 (1976),

should serve as precedent that the meeting
under discussion was not a meeting within
the purview of Section 19.82(2), Stats.

The Conta decision cannot be considered
as precedent for the proposition
that no meeting occurred here.

Conta held that a meeting held by a less than
a majority of the members of a governmental
body was not a meeting within the law.

But the supreme court did make the following
relevant statements:

If every member of a governmental body
is present at a conference and any of
the broad activity that composes
governmental activity as defined in
Section 66.77(3), Stats., is undertaken,
a question of evasion is posed;

the members are exposing themselves to
the jeopardy of a prosecution.

A chance gathering would not justify
governmental activity being
intentionally conducted, unless an
emergency or other difficulties (other
than that engendered by open session
compliance) made such action necessary.

A planned conference of the whole
offers no such exigent excuse.

Likewise, when a majority and thus a
quorum gather, it is a rare occasion
which can justify any action without
open session compliance and therefore
not be considered an evasion of the law.

Quorum gatherings should be presumed to
be in violation of the law, due to a
quorum's ability to thereafter call,
compose and control by vote a formal
meeting of a governmental body.
. . . .
When the members of a governmental body
gather in sufficient numbers to compose
a quorum, and then intentionally expose
themselves to the decision-making
process on business of their parent body
by the receipt of evidence, advisory
testimony, and the views of each other
an evasion of the law is evidenced.

Some occurrence at the session may forge
an open or silent agreement. . . The
possibility that a decision could be
influenced dictates that compliance
with the law be met.


 
71 OAG 63 64 65 66 67 68 69 70 END

71 Wis.2d at 685-86.

The general question posed in the Slavney
opinion related to a collegial body's
exercise of its quasi-judicial function, a
function which is a properly recognized
exemption to the open-session requirement.

That opinion dealt with a general situation
wherein it was a practice among commissioners
to delegate to a single commissioner the
responsibility to research a question
for later discussion and decision
by the full body.

During the course of the research, the
researching commissioner might engage
in "student-like" brainstorming
or "thinking-out" of a position
with another commissioner.

It was stated in the Slavney
opinion that the

clear intent of the law is to
distinguish between informal
and occasional "brainstorming"
which are not "meetings" and
discussions which actually lead to
a conclusion which are "meetings."

Discussions in such depth, detail,
or scope as to render the later
formal meeting a charade with a
predetermined outcome are prohibited."

68 Op. Att'y Gen. at 174.

It was also recognized in that opinion
that the described circumstances might
constitute a "meeting" in some instances
and not in others:

The determination depends on the nature,
scope, and details of the matters
discussed as well as the intent
of the Commissioners.

Discussions or brainstorming of a
tentative nature preliminary to focusing
on a specific outcome and which are not
intended to evade the law are, in my
opinion, not covered by the law.

While this test may be difficult to
apply in practice, it is suggested by
the law itself, and is not unlike the
various tests which are applied by the
courts to determine, for example,
whether police suspicion has so focused
on a suspect that he need be given
Miranda warnings or whether there is
probable cause to believe that evidence
may be found in a particular place or
on a particular person.

The general standard can be stated; the
specific application turns on the facts.

Here a court would look to the intent of
the Commissioners and the actual nature
and detail of the discussions as the
court did in Canta with the burden,
because a quorum is rebuttably presumed
to constitute a meeting, resting with
the Commissioners to show lack of
intent to evade the law and lack of a
final action or determination.

71 OAG 63 64 65 66 67 68 69 70 END

The character of later debate and
discussion is certainly an item of
circumstantial evidence which
would be considered by a court
in reviewing your actions.

68 Op. Att'y Gen. at 175-76.

Unlike the general question posed by the
Slavney opinion, we are here dealing with a
specific, detailed factual question.

The facts, as presented, may be superficially
similar to the WERC "brainstorming" but are,
I believe, distinguishable.

In this instance, there was a planned meeting
at which all six members of the
Committee were present.

The purpose was to resolve real differences
between the two members delegated the
responsibility for drafting legislation.

It does not matter whether those differences
were derived from personal or
political motivation.

The resolution of those differences would
undoubtedly have a direct influence on the
Committee's ultimately reaching a decision.

Such a meeting does not appear to be as far
removed from the "crucial decision/policy
making functions" as the "brainstorming"
by WERC Commissioners.

Further, as mentioned above, the statutory
definition of a "meeting" states that
when one-half or more members convene,
a "meeting" is rebuttably presumed.

Thus, since all six members of the Special
Committee were present on December 2, the
burden rests with the Special Committee to
establish that a "meeting" was not held.

Although the legal issue may be a close one,
the facts as presented do not, for the
purposes of this opinion, appear to be
strong enough to overcome the strong
presumption of openness which our law favors.

It also has been suggested that by virtue of
Section 19.87(2), Stats., and 1981 Senate
Resolution 10 that there was no
violation of the law.

Section 19.87(2), Stats., provides:

   No provision of this subchapter which
   conflicts with a rule of the senate or
   assembly or joint rule of the
   legislature shall apply to a meeting
   conducted in compliance with such rule.

1981 Senate Resolution 10 provides:

Resolved by the senate, That.

SECTION 1.
REAPPORTIONMENT COMMITTEE;
PARTISAN CAUCUSES.

The members of the special committee on
reapportionment may, at any time, hold
partisan caucuses on matters within the
purview of the special committee.

Such caucuses shall be exempt from
the provisions of subchapter IV of
Chapter 19 of the statutes.

It is the sense of the senate that
the authorization granted by this
resolution to the special committee
on reapportionment is a rule of the
Senate within the meaning of
Section 19.87(2) of the statutes.

71 OAG 63 64 65 66 67 68 69 70 END

Apparently the argument is, since each
partisan faction of the committee lawfully
could have met in closed session, they can
meet in a combined or joint caucus.

I regard this argument as one that would
lead to a subterfuge of the law.

1981 Senate Resolution 10, by express
language, applies only to

   "partisan caucuses."

It contemplates separate meetings limited
to committee members who are members
of the same political party.

The word "partisan" is a word of limitation.

The resolution does not provide an exemption
or exception for meetings of the committee
attended by members from both political
parties or for caucuses by the entire
committee.

Finally, I appreciate the concern of many
members of the Legislature that allowing
members of the news media to attend and
report meetings of the type held by the
Committee on December 2 would have a
chilling effect on the meeting.

But this could be said of many meetings of
all governmental bodies, the Legislature,
county boards, city councils, town boards
or committees of the same.

Nevertheless, this is an inconvenience a
price if you will of democracy where
openness and accountability to the
electorate is a cornerstone of our
representative form of government.

BCL:WHW

[1]

Resolved by the senate That:

SECTION 1.

SPECIAL COMMITTEE ON REAPPORTIONMENT:

The adoption of this resolution there is
created a senate special committee on
reapportionment.

The committee shall consist of 3
majority party senators including the
committee chair and 3 minority party
senators appointed as are the members of
standing committees of the senate.

One of the minority party members shall
act as liaison with the governor.

One of the committee's majority party
members shall serve as the senate's
delegate to the assembly's
reapportionment committee.

Proposals may be referred to, and
reported by, the special committee on
reapportionment in the same manner as
senate standing committees.

The special committee on reapportionment
shall function until the redistricting
of congressional, senate and assembly
districts has been accomplished or until
the final adjournment of this
legislature, whichever occurs first.

71 OAG 63 64 65 66 67 68 69 70 END